Age Discrimination: caution advised in light of recent Employment Appeal Tribunal decisions

The Employment Appeal Tribunal (EAT) has upheld opposing tribunal decisions with surprisingly similar facts and circumstances, involving the same employer and the same policy. The cases of Pitcher -v- University of Oxford and University of Oxford -v- Ewart, both concerned claims of age discrimination and unfair dismissal brought by former professors of the University. Both professors had been subject to mandatory retirement under the University’s Employer Justified Retirement Age policy (EJRA). The two appeals were considered together by the EAT and demonstrate the impact that factual differences that may initially seem trivial and the quality of evidence can have on an employment tribunal case.

The policy which required the retirement of the two professors was the EJRA used by Oxford University and its colleges. The EJRA was introduced in 2011 following the introduction of the Equality Act 2010 which abolished contractual default retirement ages. The EJRA requires employees to retire at 67; however, it contains provisions allowing staff to apply to extend their employment beyond the mandatory retirement age. Although the EJRA allowed for extensions to be made on a fixed-term basis, the procedure dictated that any extension had to consider the aims of the EJRA and, as a result, they would only be granted in circumstances where the advantages of continued employment outweighed those aims. The EJRA’s rules in relation to second extensions were even more restrictive.

The policy had been consulted on extensively, including amongst the colleges, and an Equality Impact Assessment had been carried out as part of the process.

Professor Pitcher

Professor Pitcher was employed as an Associate Professor of English Literature and was employed jointly by Oxford University and St John’s College. Prior to his retirement date, he made an application to extend his retirement; however, this was refused. His departments did not consider that there was a sufficiently clear advantage to outweigh the benefit of creating a vacancy for a new professor.

Professor Pitcher subsequently brought claims for age discrimination and unfair dismissal.

Both employers accepted that the decision to terminate Professor Pitcher’s employment in accordance with the EJRA amounted to less favourable treatment on the grounds of age, but they argued that the requirements in the EJRA were a proportionate means of achieving legitimate aims.

The legitimate aims relied upon included promoting inter-generational fairness, by ensuring there were opportunities for the progression for younger academics, facilitating succession planning and promoting equality and diversity, on the basis that providing opportunities for younger academics was likely to increase diversity among the relevant staff groups.

The tribunal accepted that these aims were legitimate and that the EJRA provisions were a proportionate means of pursuing these legitimate aims. On that basis, Professor Pitcher’s claims failed.

Professor Ewart

Professor Ewart was an Associate Professor of Atomic and Laser Physics. Professor Ewart applied for a two-year extension beyond the EJRA age of 67. The application was accepted, and he continued in an 80% pro rata role with the department of physics. Professor Ewart then applied for a second time to extend his employment for a further three years under the EJRA procedure. The University refused Professor Ewart’s second application and his employment came to an end on 30 September 2017 (on the expiry of the original two-year extension period).

Professor Ewart brought claims of unfair dismissal and direct age discrimination in the employment tribunal. The University again accepted that Professor Ewart’s dismissal in line with the EJRA was less favourable treatment on the basis of age, but said that this treatment was justified as a proportionate means of pursuing legitimate aims. The University relied on very similar legitimate aims in both the Ewart and Pitcher claims.

Professor Ewart’s case was heard by a different employment tribunal, which upheld the claims of unfair dismissal and direct discrimination.

The Appeal

Professor Pitcher appealed the dismissal of his claims to the EAT. The University appealed the decision to uphold Professor Ewart’s direct discrimination claim. The EAT was faced with two conflicting decisions (by two different tribunals) on the same EJRA policy operated by the same employer. The two appeals were joined and heard together.

The EAT commented generally on both cases, saying that “the nature of the assessment that has to be undertaken by tribunals when determining the question of objective justification is such that it is possible for different tribunals to reach different conclusions when considering the same measure adopted by the same employer in respect of the same aims.”

In considering the two judgments, the EAT considered the slight differences between the cases which distinguished the tribunals’ decisions. Firstly, the Ewart tribunal had evidence in front of it that was not presented in the Pitcher case, and this had swung the balance towards the EJRA policy being unjustified. Secondly, the Ewart case had a few factual differences that meant the issues were considered from a different perspective. In particular, the fixed-term extension that had been granted to Professor Ewart, based on his different circumstances, was found to defeat the objectives of the EJRA.

The EAT declined to interfere with either tribunal’s decision. The EAT stated that their task was not to “strive to find a single answer” (on the lawfulness or otherwise of the EJRA), but to consider whether either employment tribunal had erred in law. “An error of law would arise if the conclusion reached was perverse,” the EAT said, “but if it was otherwise open to that ET, on the evidence before it, the fact that another ET reached a different decision will not give the EAT jurisdiction to interfere.”

Conclusions

As the EAT acknowledges, the contradictory findings in these cases are frustrating for an employer trying to assess the justification of a particular policy. However, it is a reminder of the importance of strong evidence at a tribunal. To justify a legitimate aim, an employer must be prepared not only to show that the policy adopted is proportionate, but also to provide clear evidence that it assists in achieving that aim. Employers should be mindful when writing exceptions into a policy, not to depart from the original objective to such an extent that the policy can no longer be justified.

In addition, the judgment provides a reminder that slight differences in factual circumstances can make a significant difference to a case.